Nebraska Administrative Code
Topic - EDUCATION, DEPARTMENT OF
Title 92 - NEBRASKA DEPARTMENT OF EDUCATION
Chapter 55 - RULES OF PRACTICE AND PROCEDURE FOR DUE PROCESS HEARINGS IN SPECIAL EDUCATION CONTESTED CASES
Section 92-55-007 - Conducting a special education contested case hearing

Universal Citation: 92 NE Admin Rules and Regs ch 55 ยง 007

Current through March 20, 2024

007.01 Order

At the discretion of the hearing officer, the hearing may be conducted in the following order:

007.01A. The hearing is called to order by the hearing officer. Any preliminary motions, stipulations or agreed orders are entertained.

007.01B. The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the petition filed under Section 004, unless the other party agreed otherwise.

007.01C. Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

007.01D. Presentation of evidence.
007.01D1. Evidence will be received in the following order:
007.01D1(a) Evidence is presented by the petitioner;

007.01D1(b) Evidence is presented by the respondent;

007.01D1(c) Rebuttal evidence is presented by the petitioner; and

007.01D1(d) Surrebuttal evidence is presented by the respondent.

007.01D2. With regard to each witness who testifies, the following examination may be conducted:
007.01D2(a) Direct examination conducted by the party who calls the witness;

007.01D2(b) Cross-examination by the opposing party;

007.01D2(c) Redirect examination by the party who called the witness; and,

007.01D2(d) Recross-examination by the opposing party.

007.01E. After the evidence is presented, each party may have opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing arguments.

007.02 Evidence

007.02A. In special education contested cases the hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.

007.02B. Any party to a formal hearing before the hearing officer, from which a decision may be appealed to the courts of this state, may request that the hearing officer be bound by the rules of evidence applicable in district court by delivering to the hearing officer at least three (3) days prior to the holding of the hearing a written request therefore. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, excluding the cost of court reporting services which the hearing officer shall procure for the hearing.

007.02C. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

007.02D. All evidence including records and documents in the possession of the hearing officer of which he or she desires to avail himself or herself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.

007.02E. A hearing officer or designee may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Any witness compelled to attend or produce evidence shall be entitled to fees and expenses allowed in district court. Any failure to respond to subpoenas and orders issued under this subsection shall be certified by the hearing officer to the district court of Lancaster County for enforcement or for punishment for contempt of the district court.

007.02F. The hearing officer shall give effect to the rules of privilege recognized by law.

007.02G. The hearing officer may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within his or her specialized knowledge and the rules and regulations adopted and promulgated by the Department.
007.02G1. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

007.02G2. Parties shall be afforded an opportunity to contest facts so noticed.

007.02G3. The record shall contain a written record of everything officially noticed.

007.02H. The hearing officer may utilize his or her experience, technical competence and specialized knowledge in the evaluation of the evidence presented to it.

007.02I. The hearing officer may produce evidence on the officer's own motion. If the hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.
007.02I1. Public expense means that the school district either pays for the full cost of the evaluation or insures the evaluation is otherwise provided at no cost to the parent.

007.02J. If the parent obtains an independent educational evaluation of his or her child at private expense, the results of the evaluation may be presented as evidence at a hearing under this Chapter regarding the child.

007.02K. Except as specified in subsection 007.11A for expedited hearings, at least five business days prior to a hearing conducted pursuant to this Chapter, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

007.02L. A hearing officer may bar any party that fails to comply with subsection 007.02K from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

007.02M. Except as specified in subsection 007.11A for expedited hearings, any party shall have the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five (5) business days before the hearing.

007.03 Conducting the hearing by electronic means

The hearing officer may conduct all or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.

007.04 Official record

007.04A. The Department shall prepare an official record, which shall include testimony and exhibits, in each special education contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested by a party for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the Department upon request. Parties other than parents may also request the transcript and official record for the purpose of rehearing or appeal and it shall be furnished by the Department upon request and tender of the cost of preparation.

007.04B. The Department shall maintain an official record of each special education contested case under the Nebraska Special Education Act or the Individuals With Disabilities Education Act for at least five (5) years following the date of the final order.

007.04C. The Department record shall consist only of the following:
007.04C1. Notices of all proceedings;

007.04C2. Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department or the hearing officer pertaining to the special education contested case;

007.04C3. The record of the hearing before the Department, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the hearing officer during the proceeding, and all proffers of proof and objections and rulings thereon; and

007.04C4. The final order.

007.04D. As provided in subsection 002.03 the hearing officer who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the special education contested case.

007.04E. Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Department record shall constitute the exclusive basis for action in special education contested cases under the Nebraska Special Education Act or the Individuals With Disabilities Education Act and for judicial review thereof.

007.05 Costs

All formal hearings shall be recorded by a court reporter at the expense of the Department. All other costs of a formal hearing shall be paid by the party or parties incurring the costs, unless otherwise ordered by a United States district court pursuant to the Individuals With Disabilities Education Act.

007.06 Parties' Rights

Any party to a hearing conducted pursuant to this Chapter shall be accorded:

007.06A. The right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

007.06B. The right to present evidence and confront, cross-examine, and compel the attendance of witnesses;

007.06C. The right to obtain a written, or, at the option of the parents, electronic verbatim record of the hearing; and,

007.06D. The right to obtain written, or, at the option of the parents, electronic findings of fact and decisions.

007.06E. Except as specified in subsection 007.07C2 for expedited hearings, the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five (5) business days before the hearing.

007.07 Appeals Related to Placement in Alternative Educational Settings

007.07A. In general.
007.07A1. The parent of a child with a disability who disagrees with any decision regarding placement under 92 NAC 51 - 016; or the manifestation determination under 92 NAC 51-016.02E; or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing by filing a petition pursuant to the procedures in this Chapter.

007.07A2. The hearing officer shall hear, and make a determination regarding, an appeal requested under subsection 007.07A.

007.07B. In making the determination under subsection 007.07A2 the hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may:
007.07B1. Return a child with a disability to the placement from which the child was removed; or

007.07B2. Order a change in placement of a child with a disability to an appropriate interim alternative educational setting for not more than forty-five (45) school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.

007.07C. Placement during appeals. When an appeal under subsection 007.07A has been requested by either the parent or the local educational agency-
007.07C1. The child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in subsection 016.02C of Rule 51 (92 NAC 51), whichever occurs first, unless the parent and the State or local educational agency agree otherwise, and

007.07C2. The hearing officer shall arrange for an expedited hearing, which shall occur within twenty (20) school days of the date the hearing is requested and shall result in a determination within ten (10) school days after the hearing.

007.08 Maintenance of current educational placement

007.08A. Except as provided in subsection 007.07C, during the pendency of any administrative or judicial proceeding regarding a special education contested case under this Chapter, unless the state or local agency and the parents or the lead agency and the parents of the child agree otherwise, the child involved in the special education contested case must remain in his or her current educational placement or must continue to receive the early intervention services currently being provided in the setting identified in the IFSP that is consented to by the parents.

007.08B. If the special education contested case involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings. If the case involves an application for initial early intervention services the infant or toddler shall receive the services not in dispute.

007.08C. If the decision of the hearing officer in a special education contested case agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for the purposes of subsection 007.08A.

007.09 Parental rights at hearings

007.09A. Parents involved in hearings must be given the right to:
007.09A1. Have the child who is the subject of the hearing present; and

007.09A2. Open the hearing to the public.

007.09B. The record of the hearing and the findings of fact and decisions described in subsections 007.06C and 007.06D must be provided at no cost to parents.

007.10 Each hearing involving oral arguments must be conducted at a time and place that is reasonably convenient to the parents and child involved.

007.11 Expedited special education contested case hearings under Section 007, are appealable consistent with subsection 008.09 and shall:

007.11A. Meet the requirements of this Chapter except the time periods identified in subsections 007.02M and 007.02K regarding disclosure of certain evidence shall be two business days; and

007.11B. Be conducted by a hearing officer who satisfies the requirements of this Chapter.

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